U.S. v. Neal

• Decision Date: 02 May 1994
• Docket Number: 93-1334 and 93-1335,Nos. 93-1298,s. 93-1298
• Citation: 36 F.3d 1190
• Parties: UNITED STATES, Appellee, v. Gary P. NEAL, Defendant, Appellant. UNITED STATES, Appellee, v. William F. KENNEY, Jr., Defendant, Appellant. UNITED STATES, Appellee, v. Charles J. FLYNN, a/k/a Chucky, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1190

36 F.3d 1190

UNITED STATES, Appellee, v. Gary P. NEAL, Defendant, Appellant.

UNITED STATES, Appellee, v. William F. KENNEY, Jr., Defendant, Appellant.

UNITED STATES, Appellee, v. Charles J. FLYNN, a/k/a Chucky, Defendant, Appellant.

Nos. 93-1298, 93-1334 and 93-1335.

United States Court of Appeals First Circuit.

Heard May 2, 1994.

Decided Sept. 30, 1994.

Paul W. Pappas, Andover, MA, by Appointment of the Court, for appellant Gary P. Neal.

Michael J. Iacopino, by Appointment of the Court, with whom Timothy I. Robinson and Brennan, Caron, Lenehan & Iacopino, Manchester, NH, were on brief for appellant William F. Kenney, Jr.

Robert Sheketoff with whom Sheketoff & Homan, Boston, MA, was on brief for appellant Charles Flynn.

Robert J. Veiga, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief for appellee.

Before SELYA and BOUDIN, Circuit Judges, and CARTER, ^* District Judge.

GENE CARTER, Chief District Judge.

Appellants Charles Flynn, William Kenney, and Gary Neal were found guilty by a jury on a number of criminal charges stemming from a series of armed robberies that took place in New Hampshire. Appellants challenge their convictions on the basis of various pre-trial, trial, and post-trial rulings issued by the court as well as statements made by the Government. We affirm on all but two of the issues raised by Appellants.

The first of these issues involves various Jencks Act requests made by Appellant Flynn. We find that the record indicates the district judge may have applied an erroneous legal standard in ruling that various materials did not qualify as statements under the Jencks Act. Accordingly, we will remand to the district court for an evidentiary hearing to determine whether statements demanded by Appellant Flynn should have been disclosed under the Jencks Act and, if so, whether nondisclosure constituted harmless error. We also remand to the district court on the issue of the order of restitution entered against Appellant Neal with instructions that a hearing be held to determine whether the full amount of monetary losses suffered by First New Hampshire Bank was caused by the conduct underlying Neal's convictions.

At this point in the proceedings, we choose not to vacate the court's Jencks Act rulings or the order of restitution but instead remand to the district court for the limited purpose of making supplemental findings with regard to these two issues. In the interim, we will retain appellate jurisdiction so that we may review the court's augmented record and subsequent determinations.

FACTUAL BACKGROUND

Appellants were tried by a jury in the District of New Hampshire during the months of October and November of 1992. The evidence presented and believed by the jury demonstrated that Appellants were involved, in varying capacities, in carrying out five armed robberies over a five-month period beginning with the armed robbery of a supermarket and ending in armed robbery of the First New Hampshire Bank ("First N.H."). ¹ Appellants were tried on a thirty-two-count indictment charging them as follows:

Counts 1 and 2 charged Appellants Flynn and Kenney with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1962(c) and (d), with each of the seven robberies alleged as predicate acts;

Count 3 charged all three Appellants with conspiracy to commit robbery of First N.H. in violation of 18 U.S.C. Sec. 371 and 18 U.S.C. Sec. 2113(a) and (d);

Counts 4 and 5 alleged that Appellants Flynn and Kenney committed armed and unarmed bank robbery of First N.H., in violation of 18 U.S.C. Sec. 2113(d) and (a) and 18 U.S.C. Sec. 2;

Counts 6 through 15, 17, and 18 alleged conspiracy and interference with commerce by threats or violence, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951, with one or more counts corresponding to each of the seven robberies. Flynn was named in all counts; Kenney was named in counts 8 through 18;

Counts 16 and 20 through 25 charged the use and carriage of firearms during and in relation to crimes of violence, in violation of 18 U.S.C. Sec. 924(c)(1), with each count corresponding to one of the seven robberies. Flynn was named in all counts and Kenney was named in all counts except Count 20;

Counts 19 and 26 through 29 charged possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g). Flynn was named in Count 19 only; Kenney was named in Count 26 only;

Count 30 charged Appellant Neal as an accessory after the fact, in violation of 18 U.S.C. Sec. 3;

Count 31 charged money laundering against Appellants Neal and Flynn, in violation of 18 U.S.C. Sec. 1956 and 18 U.S.C. Sec. 2; and

Count 32 charged criminal forfeiture of a 1987 Nissan automobile against Neal and Flynn, in violation of 18 U.S.C. Secs. 981 and 1956.

Government's Consolidated Brief at 3-6.

Appellants were initially charged with three other co-conspirators, Bruce Raineri, Brian Raineri, and Richard Ferguson. These three men pled guilty and cooperated to varying extents with the Government. Several other alleged co-conspirators, including Arthur Cosgro and Thomas McQueeney, also provided evidence against Appellants.

The evidence presented during the thirty-one-day trial is sufficient to justify the following conclusions of fact. Appellant Charles Flynn, a/k/a "Chuckie," was the leader and organizer of the group of co-conspirators. Flynn scoped out robbery locations, devised the plans, and recruited others to commit or assist in the crimes. Appellant William Kenney participated as the gunman and shared in proceeds of four robberies planned by Flynn, excluding the Market Basket robbery. Kenney also assisted Flynn in surveilling armored cars that serviced various stores and banks which were prospective robbery sites. Appellant Gary Neal played a more limited role in the overall conspiracy (this is reflected by the fact that he was indicted on only four counts and found guilty on two counts limited to the bank robbery). ² The evidence demonstrated that Neal provided his home to the co-conspirators where they planned the bank robbery and took refuge after they committed the crime. Immediately following the robbery, Neal carried a box from the getaway car into his home containing the gun used in the bank robbery along with the stolen proceeds. He also used proceeds from the robbery to purchase a car in his name that was used by Flynn and Kenney to travel to Arizona and then to California in order to escape the scene of the crime. On their trip, Flynn and Kenney disposed of clothes used in the crime and stored the gun used in all five crimes in a garage belonging to Patricia Ferguson, a co-conspirator's relative.

On defendants' motions at the close of the evidence, the court dismissed RICO Counts 1 and 2, finding the Government failed to demonstrate a sufficient continuity of offenses. The court also dismissed Counts 12, 13, and 23, all involving the Phantom Fireworks robbery. The jury then rendered its verdicts, finding Flynn guilty on all remaining charges against him except Counts 8, 9, and 21, involving the night deposit robbery of an employee of Abercrombie and Finch restaurant. The jury found Kenney guilty on all remaining counts against him except for the counts involving the Abercrombie and Finch robbery and found Neal guilty of being an accessory after the fact and money laundering, as alleged in Counts 30 and 31, but not guilty on count 3, alleging conspiracy to rob First N.H.

DISCUSSION

Appellants raise a litany of challenges against various rulings issued by the district court judge and statements made by the Government throughout the proceedings. The Court finds merit in Appellant Flynn's argument that both the Government and the district judge were operating under an improper legal standard in determining what statements qualified as Jencks Act material and should have been disclosed to the defense during trial. The Court also finds merit in Appellant Neal's argument that the court erred in ordering $266,500 in restitution against him for his role in the First N.H. robbery. These arguments will be treated first. The Court finds no merit in Appellants' remaining claims which will be discussed, in turn, in the order of joint challenges raised by Appellants followed by challenges raised individually by Flynn, Kenney, and Neal.

I. LEGAL STANDARD USED BY THE COURT AND GOVERNMENT IN DETERMINING WHAT EVIDENCE SHOULD BE DISCLOSED TO

APPELLANT FLYNN

A. Brady Claims

Appellant Flynn has framed much of his argument on appeal in terms of a Brady violation. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that a prosecutor's suppression of evidence favorable to and requested by a defendant violates due process where the evidence is material to guilt or to punishment). Appellant points to statements in the record indicating that the Government attorney harbored an erroneously narrow view of what materials were exculpatory and should have been disclosed to the defense pursuant to Brady and its progeny. Flynn acknowledges that the Government provided certain disputed materials to the trial court for in camera review. However, he argues that the Government's erroneous view of what qualified as Brady, as a threshold matter, most likely resulted in the withholding of many other exculpatory materials from the court. He requests this Court to unseal the documents that were turned over, remand the case for further hearing in the district court, and order that the Government disclose all other Brady material in its possession.

A careful and thorough review of the record supports Appellant's assertion that the Government attorney misunderstood the reach of Brady. ³ However, in virtually every instance of dispute pointed out by Appellant and the Government, the Government attorney indicated on the record that all materials related to the witness in question were being turned over to the district...